5/14/09
A state Appeals Court judge has ruled an Española man cannot sue Ohkay Owingeh Pueblo’s Tsay Corporation in state District Court for refusing to immediately pay out the $250,000 he won in a September 2007 casino drawing.
Ohkay Casino, which is owned by Tsay, gave Cruz Holguin the option of either collecting half his winnings from the “Million Dollar Giveaway” immediately, or else receiving the entire $250,000 in monthly payments over 20 years, the Appeals Court ruling states. Holguin chose the first option, but sued the casino in January 2008 when he saw his photograph on a billboard advertising him as a $250,000 winner.
Tsay is a tribal business, and under the immunity tribes have as sovereign nations, the company is also immune from most civil lawsuits from casino patrons. However, Okhay Owingeh’s state gambling compact includes an exception to that rule, allowing patrons who suffer “bodily injury or property damage” to seek compensation in state court.
Holguin sued Tsay for breach of contract and unfair practices, arguing the casino falsely advertised him as a $250,000 winner and “reaped significant benefit” in the process, according to the ruling.
Holguin also argued he suffered emotional damage from the invasion of privacy caused by the casino posting his picture on the billboard.
Tsay Chief Executive Officer Ron Lovato said before Holguin sued, the casino offered him an opportunity to switch to the payment option to receive the full $250,000 over time, but he declined. That offer is now off the table, Lovato said.
“When he first came back, he said blah blah blah, that he didn’t realize, and we said that’s fine, we’ll do the other option,” Lovato said. “He said no.”
Then-District Court Judge Tim Garcia, who is now an Appeals Court judge, ruled in April 2008 that state courts have no jurisdiction over three counts in Holguin’s lawsuit, including the breach of contract and unfair practices complaints, but said Holguin could pursue compensation for the two counts of invasion of privacy, according to District court documents.
Tsay’s lawyer, Lee Bergen, asked for the Appeals Court to review that decision before the District Court case proceeded. Holguin was left without a case when Appeals Court Judge Jonathan B. Sutin overruled Garcia and threw out the two remaining counts May 5, ruling that invasion of privacy is not covered under the bodily injury exception in Okhay’s gambling compact.
“Tsay argues that the words ‘bodily injury’ and ‘property damage’ unambiguously require physical damage to a patron’s person or property and cannot be construed to mean or include emotional injury resulting from the invasion of privacy alleged,” Sutin wrote. “We agree with Tsay.”
Sutin also pointed out rules for the drawing clearly state the winner will pick between the $125,000 lump sum payment or the $250,000 spread over 20 years, and that both the rules and a release waiver Holguin signed gave the casino permission to use his name and photograph in promotional materials.
Lovato said Holguin voluntarily signed the waiver and would have received his winnings even if he hadn’t.
“They don’t have to sign it,” Lovato said. “But he said, ‘Ok,’ and he signed it, but I guess when we actually used his picture, he didn’t like it.”
Tim Butler, Holguin’s lawyer, said he is evaluating whether to continue the appeal process or sue Tsay in tribal court.